As of Sept. 1, NH employees have the right to request flexible working arrangements without fear of retaliation from their employers. This makes NH the second state to offer protections to employees requesting flexible working arrangements. In 2014, Vermont became the first state to enact a law with similar protections.
The law applies to all NH employees and is fairly straightforward. It provides that “no employer shall retaliate against any employee solely because the employee requests a flexible work schedule.” To be clear, the law does not require employers to accommodate an employee’s request for a flexible work schedule, nor does it require employers to engage in discussions with employees following a request for a flexible work schedule. Further, the law does not grant employees a cause of action if an employer fails to accommodate a requested flexible work schedule. Instead, the new law merely shields employees who seek flexible work arrangements from retaliation.
Although the new law appears relatively clear at first glance, the Legislature’s failure to define certain terms may create some uncertainty for employers. For example, the Legislature did not define what constitutes a “flexible working arrangement,” or what constitutes a “request” for such an arrangement. Similarly, the new law does not define retaliation. Thus, employers are advised to proceed cautiously to gain a better understanding of when the law’s provisions will be triggered.
Avoiding Legal Entanglements
While the law does not grant an employee any right to sue for money or other action if an employer denies a request for a flexible work schedule, employees are not without recourse. New Hampshire law enables the labor commissioner to adjudicate administrative complaints based on violations of labor laws.
The law clearly states employers are prohibited from engaging in retaliatory conduct against an employee who requests a flexible work schedule. And the law does not define conduct constituting retaliation, traditional examples of retaliation include: discharge, threatened discharge, and changes in an employee’s compensation, terms, conditions, location or privileges of employment. Employers who retaliate against requesting employees may face costly law suits.
Finally, companies may face lawsuits from employees claiming wrongful termination. That is, employees may argue that their termination was a consequence of requesting a flexible schedule. Businesses can better defend against these types of suits by demonstrating non-retaliatory reasons for the employee’s termination.
Take a Proactive Approach
The new law does not establish criteria for implementing flexible work arrangements, and yet, all employers should be proactive in developing a process to evaluate such requests. First, it is prudent to speak with employees about their needs and those of the business in relation to flexible schedules. Second, if the request for a flexible schedule is denied, thoroughly document the reasons for the denial. Finally, carefully document all future employment decisions following denial of a flexible schedule request.
Appropriate documentation of subsequent employment decisions may protect the business from an employee’s future claim. Developing and adhering to an evaluation process helps ensure that businesses deal consistently with each flexible schedule request, therefore reducing an employee’s ability to argue inconsistent treatment.
Flexibility as a Recruitment Tool
Employers shouldn’t view the new flexible work arrangement law in a negative light, particularly where today’s employees increasingly seek family-friendly and employee-friendly workplaces. Employees are searching for companies that offer more flexibility than telecommuting, like varied work schedules and increased autonomy without penalty or loss of upward mobility.
Flexible work environments help to attract and retain quality talent, while promoting job satisfaction among current employees. In turn, increased job satisfaction may influence performance, leading to increased productivity and a stronger commitment to the business, which ultimately can positively affect the bottom line.
These terms are not just trendy catch phrases, but rather, concepts that companies should consider as part of their recruitment and growth strategy.
Talesha L. Saint-Marc is an attorney in the Labor and Employment and Litigation and Dispute Resolution practice groups at Bernstein Shur in Manchester. She can be reached at tsaintmarc@bernsteinshur.com.
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